ANALYSIS

Why the Government Can't Fix Its Leaks

The government’s case against a former National Security Agency manager accused of providing a reporter with classified information about a sophisticated data-mining technology collapsed Friday. Though he allegedly compromised a major secret, Thomas Drake, pled guilty to a misdemeanor charge of mishandling classified information.

Suffice it to say, there are several ways to read the government’s decision to back down. One is that it is extremely difficult to prosecute leakers of classified information. Another is that the demise of the Drake case suggests the government may be spinning its wheels. That, in turn, implies that the main argument against such prosecutions –- that it chills speech and discourages whistleblowers -- may not be very strong.

In fact, the opposite might be true, at least in the national-security realm.

Though the less-painful penalties for being caught – shame, loss of a security clearance, suspension – might deter some would-be leakers, whistleblowers tend to get away with it. The law is not straightforward, and when you combine it with perverse incentives inside the intelligence community and with a cannon of decisions (formal and informal) that defer to the prerogatives of major news entities, it tends to provide a measure of protection.

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That’s not to say that the government isn’t trying. They just aren’t very good at it. One strategy has been to try to test the notion that journalists can be prosecuted for disclosing classified information under the Espionage Act, which criminalizes the disclosure of sensitive communications or intelligence sources, methods, and ciphers by anyone to anyone. (In theory, the government could sue to stop publication, but the Nixon administration chose a stupid case – the Pentagon Papers – to test this principle with the Supreme Court; it lost, thereby giving publishers wide latitude.)

The George W. Bush and Obama Justice Departments have said, yes, absolutely, reporters can be held liable for publishing classified information. A task force of the smartest minds in government is trying to figure out if there is any way to punish WikiLeaks founder Julian Assange. Privately, the Justice Department can’t figure out a formal way to distinguish Assange from The New York Times, unless it can prove that he helped procure the information.

Prosecutors and policy makers have been extremely reluctant to actually take the step of directly prosecuting journalists, instead preferring to pressure reporters by going after their sources. This has the feel-good benefit of forcing judges to jail journalists, taking the responsibility for penalties out of the hands of prosecutors. For crimes that don’t involve national security and do involve smaller, poorer, publications, judges do prosecutorial handiwork by imposing onerous civil sanctions. Even in its current condition, The New York Times can withstand most financial assaults.

Later this summer, the government will call Times reporter James Risen to a Washington courtroom and ask him whether Jeffrey A. Sterling, a former CIA case officer, was the source for his stories about a clandestine U.S. program designed to degrade Iran’s centrifuge capability. Risen is expected not to reveal his source, offering a judge the opportunity to jail him.

If that happens, he will be the decade’s second reporter of national prominence to spend time behind bars for revealing a source – the first being Judith Miller, who would not identify Scooter Libby, then-Vice President Dick Cheney’s chief of staff, as a source for a story she never even published. The identity of a U.S. strategic asset -- a CIA case officer named Valerie Plame – had been disclosed by columnist Robert Novak. The alleged motive for the leak remains unclear, as the person identified as having given Novak the information – Dick Armitage, a former chief of staff to then-Secretary of State Colin Powell – was not known as a pro-war agitator. Armitage was never charged with a crime. (Matthew Cooper, a correspondent then for Time, narrowly avoided jail for refusing to identify his Plame source. Cooper now edits National Journal Daily.)

There was a measure of justice for Plame, even though her exposure was personally and professionally devastating: Libby was convicted on several counts and spent some time in jail before having his sentence commuted by President Bush. But the trial turned into a proxy about the Iraq war, and the messiness of it all stung the Justice Department to such a degree that it became quite wary of hunting down leakers in subsequent years.

When Barack Obama took office, his Justice Department was instructed to wrap up as many cases as possible and bring serious ones to trial. Obama does not tolerate leakers – unofficial leakers, anyway -- and has instructed his numerous directors of national intelligence to crack down on them.